Calcutta High Court (Appellete Side)
M/S. Mahabir Traders vs Arunava Sasmal & Ors on 31 January, 2023
31.01.2023
SL No.11
Court No.8
(gc)
MAT 71 of 2023
CAN 1 of 2023
CAN 2 of 2023
M/s. Mahabir Traders, Tantigeria Rangamati
Vs.
Arunava Sasmal & Ors.
Mr. Saptangshu Basu, Sr. Adv.,
Mr. Debobrata Saha Roy,
Mr. Pingal Bhattacharyya,
Mr. Sankha Biswas,
...for the Appellant.
Mr. Timir Baran Saha,
...for the Writ petitioner/Respondent.
Mr. Susovan Sengupta,
Mr. Subir Pal,
...for the State.
This matter has been assigned to the Division
Bench presided over by one of us (Soumen Sen, J.) on
25.01.2023.
The matter is placed before us.
We have heard Mr. Saptangshu Basu, learned
Senior Counsel appearing on behalf of the appellant, Mr.
Susovan Sengupta, learned Counsel representing the
State and Mr. Timir Baran Saha, learned Counsel
representing the writ petitioner/respondent.
Mr. Basu has drawn our attention to the Clause 23
of the Control Order, 2003 and submits that the said
Control Order may not have any application in the case of
a partnership firm. It is submitted that a learned Single
Judge has misconstrued the Control Order, 2003 in
failing to appreciate that the licence presently possessed
by the appellant is by way of renewal and not of a fresh
grant. It is submitted that the reconstitution was
necessitated upon the death of one of the partners and
with the consent of the legal heirs of the deceased partner
an outsider was inducted as a partner.
Mr. Sengupta, learned Counsel representing the
State in support of the argument made by Mr. Basu has
drawn our attention to the West Bengal Public
Distribution System, Maintenance and Control Order,
2003, Clause 26(vi) which contemplates induction of a
new partner or substitution or exclusion of an existing
partner in an existing partnership licence that may be
considered on merit by the authority concerned subject to
the provisions of the Indian Partnership Act, 1932 as
amended from time to time. He has further submitted
that 2013 Control Order has also clearly stated in Clause
26 that in the event of dissolution of firm formed by a
group of people, the resultant vacancy needs to be notified
by the District Controller, Food and Supplies with prior
approval of the department. It is submitted that since it
is reconstitution of a partnership firm and not a case of
dissolution of firm, the vacancy need not be notified.
Mr. Saha, on the other hand, has submitted that an
outsider was inducted on compassionate ground and,
accordingly, in view of a clear prohibition that save and
except the legal heirs of the deceased, no other person can
be inducted in the distributorship business, the induction
was illegal.
It is not in dispute that the partnership firm was
the distributor. Due to death of one of the legal heirs, the
partnership was reconstituted by inducting an outsider.
Mr. Basu has produced the partnership deed dated
1st February, 2005 which, inter alia, contains the
following clause:-
"11. That if any partner dies during the continuance
of the partnership his/her heirs, assigns or
legal representatives shall be partners in
his/her place from the date of such death and
there need be no dissolution of partnership but
mere arrangement or adjustment of the
respective shares shall be enough for the
purpose of carrying on the partnership."
The aforesaid clause does not prohibit the induction
of an outsider as it has used the word "assigns".
The appellant has from time to time produced the
required papers including the original partnership deed
and the reconstituted deed at the time of renewal of the
distributorship. In fact, the legal heirs of the deceased
filed a writ petition challenging the exclusion from the
distributorship business that was dismissed on merits by
Justice Joymalya Bagchi on 25th July, 2014 in WP
17857(W) of 2013 (Ramesh Kumar Sharma Vs. The State
of West Bengal & Ors.).
In the said writ petition, the legal heirs of the said
deceased partner did not raise any issue that the licence
granted to the reconstituted partnership was invalid in
law or in contravention of the relevant control orders. The
writ petitioner in the present proceeding is a different
person and as such he would not be precluded to such an
issue. However, having regard to the fact that there is no
dissolution of the firm and it is only a reconstitution, we
are of the view that an arguable case has been made out
by the appellant for stay of operation of the impugned
judgment and order.
In view thereof, the impugned order shall remain
stayed for a period of 8 (eight) weeks or until further
order, whichever is earlier.
The application for stay being CAN 1 of 2023 stands
disposed of.
Re: CAN 2 of 2023
This is an application for additional evidence at the
appellate stage.
The learned Counsel representing the writ
petitioner/respondent submits that he has no objection in
the event the appellant is allowed to bring on record the
two M.R. Distributorship licences issued in favour of the
reconstituted partnership firm of the appellant.
In view thereof, the application being CAN 2 of 2023
is allowed and disposed of.
These two documents shall form part of the paper
book with a separate index.
The appellant shall file an informal paper book with
proper index within three weeks from date upon prior
service to Mr. Sengupta and Mr. Saha.
The appeal shall be listed under the heading
"Assigned Matters" in the Combined Monthly List of
March, 2023.
(Uday Kumar, J.) (Soumen Sen, J.)
